December 19, 2012

As reported in this local article, headlined "In plea deal, most of marijuana caregiver's convictions to be dropped," there has been a notable (and disturbing?) development in a notable (and disturbing?) federal criminal case involving a Montana medical marijuana provider. Here are the details:

In a highly unusual move, federal prosecutors have agreed to drop six of eight marijuana convictions for Christopher Williams in exchange for his agreeing to waive his right to appeal.
In addition, the government has agreed to ask U.S. District Judge Dana Christensen to dismiss the $1,728,000 criminal forfeiture awarded to the government by a jury earlier this year.

The agreement was outlined under a settlement filed Tuesday in U.S. District Court. In the document, signed by Williams, U.S. Assistant Attorney Joe Thaggard, and federal public defender Michael Donahoe, they note that this agreement “constitutes the final and best offer to resolve this matter.”

Williams, a medical marijuana caregiver, was convicted by a 12-member jury in September after a four-day trial. He was facing a minimum mandatory sentence of between 85 and 92 years, due in part to four counts that involved possessing a firearm in furtherance of a drug trafficking crime. Sentences for those counts, by law, had to run consecutively.

Immediately after his conviction, Thaggard had offered to drop some of the charges, but they still involved a 10-year mandatory minimum sentence. Williams rejected the offer, saying he was willing to spend the rest of his life in prison to fight what he believed were violations of his constitutional rights.

Under the newest deal, the federal government dropped convictions for conspiracy to manufacture and possess with the intent to distribute marijuana; manufacture of marijuana; possession with intent to distribute marijuana; and three counts of possessing a firearm in furtherance of a drug trafficking crime. His convictions for one count of possessing a firearm in connection with drug trafficking and one count of possession with intent to distribute marijuana will stand.

He faces a maximum term of five years for the distribution of marijuana charge and a mandatory minimum of five years — and a maximum of life — for the firearm-related charge.

Kari Boiter, a friend of Williams, reported late Tuesday that she had talked to him via a phone call. He was incarcerated at the time at the Missoula County Detention Facility.
Boiter says Williams told her it wasn’t easy for him to give up his constitutional fight, but as he navigated the complex federal penal system, it became clear that punishment was the only thing that was guaranteed.

“With the rest of my life literally hanging in the balance, I simply could not withstand the pressure any longer,” Williams said in a statement released by Boiter. “If Judge Christensen shows mercy and limits my sentence to the five year mandatory minimum, I could be present at my 16-year-old son’s college graduation. This would most likely be impossible had I rejected the latest compromise.”

Williams was a partner in Montana Cannabis, which operated distribution centers in Helena, Billings, Miles City and Missoula, and had a large marijuana greenhouse west of Helena on Highway 12. The four partners — Williams, Chris Lindsey, Thomas Daubert and Richard Flor — said they tried to set the “gold standard” for medical marijuana businesses after voters overwhelmingly passed legislation in 2004 permitting caregivers to distribute marijuana to people with physical ailments.

But under a federal crackdown in March 2011, Montana Cannabis was one of about 25 medical marijuana businesses that were raided, since marijuana is still considered a Schedule 1 narcotic under federal laws. Williams is the only person in Montana to take his case all the way to trial.

Daubert, Lindsey and Flor all pleaded guilty to various marijuana possession and distribution charges. Daubert received a sentence of five years on probation; Lindsey is expected to be sentenced Jan. 4 and prosecutors have agreed to seek a sentence similar to Daubert’s based upon Lindsey’s health problems and limited involvement in Montana Cannabis. Flor, who was sentenced to 10 years in prison, died from health-related complications while incarcerated....

It’s unknown whether Williams’ sentencing hearing, slated for Jan. 4 in Missoula, will still take place on that date.

As a matter of equitable substantive sentencing justice, I am very pleased to learn that Chris Williams is no longer facing a federal mandatory sentence of essentially LWOP for distrubuting marijuana in compliance with Montana law. But as a matter of constitutional law and federal criminal procedure, I find this new novel "sentencing settlement" disturbing from various perspectives. Let me explain:

Start with the government actors: though federal prosecutors have broad charging and bargaining discretion, what gives them authority to drop 75% of presumptively lawful convictions after a presumptive lawful jury trial? Unless and until prosecutors articulate a constitutional or legal reason for dropping thse convictions, this decision appears to be a form of "prosecution nullification" that strikes me even more lawless than "jury nullification." Prosecutors frequently contest and complain about the power of juries to nullify a prosecutor's criminal charges based on equitable rather than legal claims; here is appears that federal prosecutors are deciding to nullify a jury's criminal convictions based on equitable rather than legal claims.

Even more worrisome, federal prosecutors in this case are going to nullify 75% of presumptively lawful convictions after a presumptive lawful jury trial in order to secure a deal to avoid any appellate scrutiny of the (also suspect?) convictions to be preserved. If federal prosecutors believe there is a sound legal or equitable basis for dropping some of these convictions, why not just drop them without demanding anything in return from the defendant rather than requiring him to give up his statutory rights to appeal his other convictions and sentence? Prosecutors here are not merely nullifying many jury convictions, but they are doing so only after essentially blackmailing the defendant to give up his rights to contest his other convictions on appeal.

Turning to the defense side: though I completely understand why Chris Williams (especially after a few months in federal lock-up) decided to give up right to an uncertain appeal in order to avoid the prospect of a certain mandatory LWOP federal sentence, I am not sure how his attorneys can feel fully comfortable representing this deal as a knowing and voluntary settlement. Based on the comments from the defendant quoted above, it seems plain to me that Chris Williams was essentially coerced by the threat of an extreme (and I think unconstitutional) sentence into giving up his appeal rights. The jury convictions and the extreme mandatory sentencing terms here functioned in this case as a kind of legal sword of Damocles hanging over the defendant's head; Williams appears to have decided to accept this "sentencing settlement" waiving appeal rights only because prosecutors kept swinging this sword past his neck.

Especially because I want Chris Williams to be able to go to his 16-year-old son’s college graduation, I do not want to prevent him from getting the obvious benefit of this deal. But because I also want Chris Williams to be able to pursue on appeal all his constitutional claims on all his convictions and sentence, I hope the judge in this case accepts this novel "sentencing settlement" while striking the waiver of appeal rights as, in this setting, void as against public policy.

Comments

Civil cases are frequently settled on appeal. While it may be rare, is there anything inherently wrong with settling a criminal case on appeal?

Posted by: Stanley Feldman | Dec 19, 2012 11:30:06 AM

Well, Stanley, this criminal case is being settled after trial but before sentencing and before any appeal. In fact, the settlement seeks to preclude any right to any appeal.

More to the point, a civil claim even after a trial verdict still involves a dispute between two private parties; a criminal conviction after a jury trial involves a public legal matter of a distinct character. To play this out, we think it perfectly appropriate for one civil part to pay another $$ to settle a civil claim. Would you think it would be appropriate if this "sentencing settlement" expressly included a direct payment of, say, $10 million from the defendant to the prosecutor (or vice versa)?

Posted by: Doug B. | Dec 19, 2012 11:54:46 AM

Forget Superman! Parents should buy their kids prosecutor dolls because apparently prosecutors can do everything!

Posted by: Thinkaboutit | Dec 19, 2012 12:11:00 PM

This case is very problematic. I agree with most, but not all, of Doug's misgivings. But I would also like to know a good deal more of what went on behind the scenes, the role of Main Justice, and the particular issues that would have been raised on appeal. Often, waiving the right to appeal is giving up virtually nothing, since the defendant's chances are approximately zip. But no one can tell unless we know specifically what the defendant was planning on raising.

1. On the prosecution side: I agree with Doug that it's very questionable whether the executive branch can just make a properly obtained conviction go bye-bye (although, as has been pointed out here quite recently, the head of the executive branch can do that by granting a pardon).

Prosecutors properly have broad discretion in what charges to bring; that job is vested in them by the Constitution. But once the brought charges are litigated in court, resulting in a judicial entry of an order of conviction, I wonder how much authority the executive branch has, or ought to have, unilaterally to make that order go away.

Something is going on in this case that I am not seeing, and I suspect (although I don't know) that it's politics. Politics has a proper role in the broad scheme of things (e.g., in whether Eric Holder or Michael Mukasey should run DOJ, or whether you get Sotomayor or Alito on the SCOTUS), but not in the slice-and-dice resolution of an individual case still in the process of getting to final adjudication.

We could really use some investigative journalism here, and I don't mean by High Times or Mother Jones.

2. On the defense side: Like Doug, I wonder whether counsel can represent this deal as voluntary. It doesn't sound all that voluntary. And even if the defense lawyer can (very questionably) so represent it, can the judge accept it? I would have to think long and hard about that were I the judge.

3. There is one area in which Doug is completly mistaken, however. He says, "I hope the judge in this case accepts this novel "sentencing settlement" while striking the waiver of appeal rights as, in this setting, void as against public policy."

Can't buy that one. The whole nature of a settlement is that it gives something to BOTH SIDES. If it turns out at the last minute that Side A gets what it dealt for, but Side B gets stiffed on what Side A agreed to, that is no deal at all.

Either both sides get what they bargained for or the deal is off. The waiver of appeal disappears, but so do the goodies the defendant got by agreeing to it.

Posted by: Bill Otis | Dec 19, 2012 1:13:37 PM

I believe Williams' two "business partners" pled and got probation. Williams was about to get 85 years. I think the prosecution needed to make that absurd result go away and it was made tougher by a defendant who rejected every offer but the last. I think this was a bit of Ransom of Red Chief (can you even say that any more?) here. They got their guy and then couldn't dispose of him.

Posted by: Thinkaboutit | Dec 19, 2012 1:25:02 PM

LOL the govt knows they will get creamed on an appeall in this case. You can tell that by this!

"the government has agreed to ask U.S. District Judge Dana Christensen to dismiss the $1,728,000 criminal forfeiture awarded to the government by a jury earlier this year."

As broke as they are No way in hell they would basically give back 2 million dollars if they thought they had a snowballs chance in hell of keeping it.

Posted by: rodsmith | Dec 19, 2012 3:19:35 PM

I am speaking generally of settlement in an adversarial system.

Absent a settlement here, I would anticipate a 2255 down the road if the appeal doesn't work out. Wouldn't the government theoretically be able to resolve that case (2255) via settlement? In other words, as long as procedural remedies are in play at this time (appeal, 2255), even if the case has not been appealed yet, settlement seems like the appropriate way to resolve the case.

Posted by: Stanley Feldman | Dec 19, 2012 4:31:16 PM

On appeal maybe Williams can argue that the constitutional issues at stake are of the sort that they can be reviewed despite the waiver (like when, despite an appeal waiver agreement, a defendant cannot be said to have waived his right to appellate review of a sentence based on a constitutionally impermissible factor like race)?

But again, this guy is gonna live with Bubba till he dies, so talk quietly and don't push the matter.. Yes I think the gvmnt has some holes or thery wouldn't bend so far... But the feds are going lax on chasing mary jane, even Obama said they have bigger fish to fry...Maybe thats whats driving this..

I sure hope he gets less than 5, but 5 and he can still have a life....Hang in there Willy....

Bill, I agree, the judge accepts the deal as is or its tossed
This guy isnot a threat down the road.. I'm sure hes not going to reopen...

Posted by: Midwest Guy | Dec 19, 2012 4:51:05 PM

Tim Polishan --

The problem is that there is no suggestion that the defendant's conviction or sentence are or will be based on an obviously unconstitutional factor like race.

Merely wanting to contest the length of the sentence is not a ground for letting the defendant push past his waiver, see United States v. Marin,. 961 F.2d 493 (4th Cir. 1992)(waiver enforced even though defendant got an unexpected upward departure). That is especailly true in this case, where the putatively excessive length of the sentence has been an issue -- maybe the major issue -- all along. The argument for enforcing the waiver is at its strongest when the defendant knew from the getgo what his principle gripe was.

In addtion, it's bad faith dealing for a party or his lawyer to make a deal and, as soon as the ink is dry, seek to circumvent it. I can tell you that if a defense lawyer had tried a stunt like that while I was in the USAO, he would never get another plea offer from us. If you can't trust someone to abide by the promises he makes with his eyes open, you can't do business with them.

Posted by: Bill Otis | Dec 19, 2012 5:05:25 PM

This case has been shining a light on the criminal justice system in the legalization states like no other.

The inmate who died while in custody was shocking and not well received. Mr. Williams was making a point about the 6th amendment when he went to trial and he knew it.

He did not know that the fact that the business was medical marijuana and that the business had complied with all state laws would not be permitted in the trial. This business - as I understand it - had been a member of the Chamber of Commerce, paid all taxes, had all regulatory agencies approve their facility etc. and I understand that even law enforcement had signed off on the operations compliance with state law. None of this was allowed as evidence.

As I've stated before guns are a staple for western and southern boys - they own them. I probably have some around my house. The firearms charges are an easy call for federal prosecutors. They will always find them and if they so choose, can use them in charging to get a conviction. It's good to have this coverage of how it works.

It is troubling that the prosecutors can set aside a jury verdict, but that is being done, and there is an insidious reason for it. More inmates are able to use mistakes made by law enforcement or the dept. of justice to be released. These cases are unknown because that is part of the agreement for release. In this case Mr. Williams has been fearless.

Posted by: beth | Dec 19, 2012 5:10:01 PM

Thanks, Bill, for sharing your insights. I have just one quibble: even if the waiver of appeal disappears, the government in this deal would get the "benefit" of not having to try to defend on appeal six convictions and the sentences that would go along with them.

I assume the main reason (arguably the only clear justifiable reason) the feds are will to now make this deal is because they think there is a chance some real chance that some of these convictions/sentences would not hold up on appeal. I do not know contract law very well, but I do think that as long as there is some remaining consideration, sometimes a contract will be upheld/preserved even if one term is struck for whatever reason.

To round out this matter, the judge might ask the prosecutor before accepting the deal if the govt would want to withdraw the deal based on the possibility of a ruling that this appeal waiver would be struck. They the feds could say on the record whether they would still want the deal even absent the appeal waiver.

Based in part on Stanley's comment, I wonder if the appeal waiver includes a waiver also of any and all 2255 claims. If not, then at least there remains a means for further review. (There is also the prospect of a direct habeas claim to SCOTUS or a 2241 action, too.) I fear these avenues of review are also foreclosed by the waiver, and I am always troubled whenever the government is eager to have a contested criminal justice outcome insulated from the usual means of appellate review.

Posted by: Doug B. | Dec 19, 2012 5:24:24 PM

Doug --

Thanks for your note. A couple of thoughts.

-- If the government is too scared to defend the convictions it sought, it never should have sought them. If no one in the USAO will do the appeal, they can hire me. I'll give them a break on my current rate, which they can't afford. The tough cases are the only ones that ever got my blood moving anyway, and now that the semester at Georgetown is ending, I have some time.

-- I really can't guess as to why the government is making this move. As I said in my original comment, something is going on we're not seeing. In 18 years as head of appeals in the EDVA, I never saw anything like this. You do your negotiating before trial, not afterward.

-- If the judge told me, as the AUSA, that if we went forward, he might accept the deal except that he would vacate the waiver, I would tell him that the waiver was the main thing my client had bargained for, and if that was no longer in the deal, the deal was off.

Once the judge finds out you can be pushed off your plea bargain one time, there's no place to stop. Every bargain from then on will be risky business, because you'll never be able to tell when, at the next hearing, the component you wanted will get tossed overboard. So you just can't start down that road. It's either the bargain you worked out with the defendant and his counsel, or it's no bargain.

-- There are several variants of the waiver. The original one, which I wrote and litigated in United States v. Wiggins, 905 F.2d 51 (4th Cir. 1990)(available here, https://bulk.resource.org/courts.gov/c/F2/905/905.F2d.51.89-5199.html), forbade any review. Other districts use watered down versions, ones that permit, e.g., a 2255, or an appeal when there's an upward departure.

My view of it was that, if you start including exceptions, you're defeating the purpose for which the waiver exits; the defense bar will ALWAYS want an expanded exceptions list. In some instances, I would entertain defense counsel's request that I allow an appeal and not enforce the waiver. On rare occasions, I allowed this. I generally expected people to keep their word (as they properly expected me to keep mine), but sometimes you'd get a genuinely puzzling issue. When that happened, I viewed it as ungracious and cowardly for my client and me to run away from a fight.

Posted by: Bill Otis | Dec 19, 2012 5:54:55 PM

we are from michigan you can read about us on the internet our names are john marcinkewciz,shelley waldron,joycob montague,in the western district.jerry duvall,jermy duvall in the eastern district of michigan currently jaycob who recieved 18 mo is in perkins ill fci,jermy duvall who recieved 5 yrs is in moorestown wv,john marcinkewciz who recieved 5 yrswill be going to duluth mn on jan 8,shelley waldron who recieved 18 mo is going to lexington ky,and jerry who is waiting on his letter to turn himself in.we currently are appealing our convictions to the 6th circuit court in cinn.we have brownstone appeals atty andrew and robert.ph num is4073881900.andrew told me he would be willing to listen to anyone who has an idea about the appeals due to the fact they believe we are the only ones he knows of that has made it this far.if anyone has an idea please for the sake of everyone in this fed vs state showdown contact them also if u know of someone that might be able to help let them know about this.god bless and lets get this right the first time unlike alcohol prohibition thanks john

Posted by: john marcinkewciz | Dec 25, 2012 5:37:53 PM

My name is Kari Boiter and I am an advocate and was given POA by Chris Williams. I would like to talk to any attorneys, policy advocates or law professors who are interested in this unusual settlement, I would also be happy to help facilitate direct communications with Chris. It's important to note that he currently has a public defender and he has not yet been sentenced (but the date is creeping ever closer - Feb. 1). LWOP is still a possibility under the terms of the "deal" but Chris can't appeal whatever sentence is handed down.

For those wondering, Chris not only waived his right to appeal the convictions but also the sentence under 2255. He does retain his right to file civil action. If you want to see the settlement for yourself, here it is:
http://reason.com/assets/db/13559381768573.pdf

Again, happy to talk to anyone who is interested in learning more details. FreeChrisWilliams @ yahoo dot com.

I have been following this trial from the beginning. It is disgusting what the feds have done to the citizens of our State! And what they have done to our citizens!
But doing away with a duly constituted jury's conviction???? Even though I totally agree with the result or at least I agree with there being less punishment....Truly, I do not believe there should be any punishment.....But I do not understand how they can legally do what they are doing. And it should have been impossible for them to legally even bring the charges...???

Posted by: VJ Cannistraci | Dec 28, 2012 8:01:35 PM

I am just an average citizen. I do not use mary jane, but know those who do and after years in Las Vegas, I see much less harm in it than the effects of alcohol. That being said, I am perplexed and disturbed by all the accounts that I've read from many states and the plea above by john marcinkewciz (that I hope some of the readers here, who are obviously well educated law professors, answer and give help just because you know this paradox is so wrong) I don't understand why the states are not defending their own statutes. How can a state license a business under it's own laws, collect taxes and fees, then abandon those that have paid those taxes and fees. Isn't there some duty of the states to defend their taxpaying law abiding citizens against federal laws that contradict their own? Is there some way that this issue could be brought to the SCOTUS by suing the states for return of those revenues and fees that the states collected under their laws that caused the victims of this controversy to have a false sense of security that they were operating within the law of their sovereign state? I don't understand and am infuriated that this is continuing in state after state regardless of the vote of the people of those states. I hope that some of you well educated law professors can explain to me as to why this goes on unchallenged by the states.
Thanks,
Dave

Posted by: David Gibson | Jan 15, 2013 3:53:38 PM

From what I've seen we have a duality in law problem. The Federal Government allows the states to make their own laws and then selectively raids certain parties within those states for "violations of Federal Law." Why even bother to allow the states to make laws at all then? This duality causes a violation of due process and is discriminatory in nature. Another point in question: Where were the local sheriffs? They have the right to REQUIRE that any warrant be shown to them first before a citizen of that state is taken into Federal custody. The local sheriff has more authority than the president in his own territory. He can kick the Feds right out of the state since he's NOT on the federal payroll and has sworn to "protect and serve" ONLY the citizens of his county. If a citizen is obeying the state laws then the feds can be ran out of that state by the sheriff. It's as simple as that. This could all have been avoided if there was a constitutional sheriff there to protect these citizens.